Annotated Lecture Transcript

While most Presidential
rules are non-legislative by nature and lack legal force, any type of
Presidential order can be given the full force and effect of law if it is
issued pursuant to a delegation of lawmaking authority from Congress and the
President declares that it is to have legal effect.[1]

The type of instrument
the President uses is immaterial to its legal force.[2]

ØForce of Law: When the President is empowered to promulgate
presidential regulations by Congress, and he intends to issue a legislative
rule, the rules he issues will have the force and effect of law.

oDoes this sound familiar?

oIt’s exactly the same as with
agency rules.

oWhen there is no Congressional
delegation of legislative power, or the President does not intend a rule to
have legal effect, then his rules will be non-legislative.

ØIntelligence Law Example
1: Executive Order 12333: United States Intelligence Activities: The most important Presidential regulation in
U.S. intelligence law is Executive Order 12333,[3] which I’ve already mentioned.

oIt derives its legal force as
a legislative rule from delegations of lawmaking power from Congress to the
President scattered throughout the National Security Act of 1947.[4]

oExecutive Order 12333
structures the responsibilities of the various agencies composing the U.S.
Intelligence Community,[5] and it imposes some basic legal
restrictions governing the conduct of intelligence activities generally.[6]

ØIntelligence Law Example 2: Executive Order 13529: Classified
National Security Information: A second great example of a presidential
legislative rule is Executive Order 13529, Classified National Security
Information, which was issued by President Barack Obama on December 29, 2009.[8]

oIt sets the standards for information classification and
declassification.

oIt was issued by President Obama based not only on his own
constitutional authority to control access to national security information,
but also pursuant to a statutory mandate from Congress.

oThat mandate is contained in the Counterintelligence and Security
Enhancement Act, which was passed back in 1994.[9]

oIn that statute, Congress amended the National Security Act and
added sections that specifically required the President to issue these rules.

oIt is this statutory mandate that imbues Executive Order 13529
with the force and effect of law.

oAs a result of this statutory mandate or delegation of lawmaking
power, Executive Order 13529 carries full legal effect.

oThis is why the President had the power to include provisions in
13529 that authorize sanctions against employees who violate its
provisions.[10]

oRemember that sanctions can only be imposed by legislative
rules.[11]

As far as U.S.
intelligence law is concerned, those two Executive Orders are probably the most
prominent examples of legislative rules issued by the President pursuant to a
delegation of lawmaking authority from Congress.

I do want to mention one
more thing about the need for a delegation of lawmaking power from Congress.

There’s one possible
exception to the requirement.

The President’s
constitutional power as Commander-in-Chief may give him limited
independent authority to promulgate legislative rules with respect to members
of the military without a delegation of lawmaking authority from Congress.[12]

These regulations might be understood to have legal force
but only as applied to members of the military who are under the
President’s command or others who fall within the lawful jurisdiction of the
armed forces.

As a practical matter, this issue is really a moot point
because Congress has already given the President all the statutory authority he
needs to promulgate military regulations.

So the issue of whether he could do it without those
statutes is of interest only to commentators.

ØShared Authority: Also, remember that this issue of independent
lawmaking by the President only relates to areas where Congress hasn’t
regulated.

oThe President’s power over
the military is shared power. Congress has the constitutional authority to
regulate the armed forces, and the President has administrative authority as
Commander-in-Chief.

oHe may exercise that
authority on his own even without statutory authority; however, if Congress has
regulated the area in question, then the President must faithfully execute
those laws.

ØBasic Human Decency at the
Pentagon Achieved Through Presidential Decree: To give you an example of where this might be used, President Truman
desegregated the military by Executive Order on July 28, 1948.[13]

oThis was a continuation of
policies started by President Roosevelt in 1942.

oThe Pentagon’s Bathroom
Battle during the War for Civil Rights: There’s actually an interesting story related to this that explains why
there are so many bathrooms in the Pentagon—there’re over 200.

§It’s all tied to the
Pentagon’s construction project back at the beginning of World War II.

§In January of 1943 right
before the Pentagon building was dedicated, President Roosevelt visited the
site and was shocked by how many bathrooms there were.

§When he asked why, he was
told it was because they needed both colored and white bathrooms throughout the
building.

§The Pentagon was in
Arlington, after all, and DoD wanted to be in compliance with Virginia’s racial
segregation laws.

§Well, President Roosevelt
wasn’t having any of that—he forced them to go rip down every last “Whites
Only” signs all over the building before it was dedicated.

§The Pentagon was dedicated a
few days later without the signs, and for years it would be one of the only
buildings in Virginia where segregation was not allowed.[14]

§If you’re into Pentagon
history, you should definitely check out House of War by James Carroll.

§He’s the son of the first
Director of the Defense Intelligence Agency and he basically grew up in the
Pentagon.

§It’s got tons of great
stories about the place, and it’s extremely well written.

§One of the best I’ve read.

ØThe Emancipation
Proclamation: Now, to give you a
much different example of how the President’s limited lawmaking power over the
military might be over-extended, consider the most famous case of ultra
vires legislative rulemaking by an American President in history—I’m
talking about President Abraham Lincoln’s famous Emancipation
Proclamation.

oThat Proclamation was a legislative
Presidential rule which purported to free all Southern slaves from bondage—it’s
easily the most famous proclamation in U.S. History.

oQuestions of Legality: Now, how did Lincoln pull this off?

§He didn’t have statutory
authority delegated by Congress, and the President lacks unilateral lawmaking
authority under the Constitution.

§The only conceivable legal
basis for his exercise of legislative power was to issue the Proclamation as a
military order, and try to squeeze constitutional authority out of Article II,
Section 2—his role as Commander-in-Chief.[15]

§The problem was that
President Lincoln’s troops occupied only the Northern states, which contained
no slaves.

§The slaves addressed in his
broad legislative rule were all in the South under the quasi-legal jurisdiction
of the Confederate government.

§As a result, some legal
scholars contend that the Emancipation Proclamation was issued ultra vires
and was void from its inception.

·Joke: Legal or not, you have to admit that it sure
beat the heck out of the proclamations we get today.

§ It’s hard to get
excited about a proclamation about National Consumer Protection Week,
when you know what past presidents have done with the same piece of paper.

§ Lincoln took all the
fun out of proclamations, so Presidents don’t even try anymore.

·Go check out the list of Proclamations
in Title 3 of the CFR—it’s a whole lot of nothing.

[2]SeeHarold C. Relyea, Congressional Research
Serv., Presidential Directives: Background and Overview (2008), available
athttps://intelligencelaw.com/files/pdf/law_library/crs/98-611_11-26-2008.pdf (“Whether these directives have the force of law
depends upon such factors as the President’s authority to issue them, their
conflict with constitutional or statutory provisions, and their promulgation in
accordance with prescribed procedure. Indeed, as history has shown,
presidential directives may be challenged in court or through congressional
action. In the latter case, however, difficulties may arise if Congress,
through legislative action, attempts to supersede or nullify a presidential
directive issued, in whole or in part, pursuant to the Executive’s
constitutional authority, the result being a possible infringement by one
constitutional branch upon the powers of another. Congress has been more
successful in overturning or modifying executive orders based solely upon or
authorized by a statute, which, of course, was the creation of the
legislature.”).

[4]See Exec. Order
No. 12,333, United States Intelligence Activities, Preamble, 46
Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by
Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No.
13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed.
Reg. 45325 (July 30, 2008), available athttps://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html
(“Timely, accurate, and insightful information about the activities,
capabilities, plans, and intentions of foreign powers, organizations, and
persons, and their agents, is essential to the national security of the United
States. All reasonable and lawful means must be used to ensure that the United
States will receive the best intelligence available. For that purpose, by
virtue of the authority vested in me by the Constitution and the laws of the
United States of America, including the National Security Act of 1947 [50
U.S.C. §§ 401 et seq.], as amended (Act), and as President of the United States
of America, in order to provide for the effective conduct of United States
intelligence activities and the protection of constitutional rights, it is
hereby ordered as follows: […]”) (emphasis added).

[7]See Exec. Order
No. 12,333, United States Intelligence Activities, ¶ 3.7(c), 46
Fed. Reg. 59941, 3 C.F.R. 200 et seq. (Dec. 4, 1981), as amended by
Exec. Order. No. 13,284, 68 Fed. Reg. 4077 (Jan. 23, 2003); Exec. Order No.
13,355, 69 Fed. Reg. 53593 (Aug. 27, 2004); and Exec. Order No. 13,470, 73 Fed.
Reg. 45325 (July 30, 2008), available athttps://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_12333.html
(“This order is intended only to improve the internal management of the
executive branch and is not intended to, and does not, create any right or
benefit, substantive or procedural, enforceable at law or in equity, by any
party against the United States, its departments, agencies or entities, its
officers, employees, or agents, or any other person.”).

[9]See
Counterintelligence and Security Enhancement Act of 1994, Title VIII of P.L.
103-359, codified at 50 U.S.C. § 435 et seq. (ordering that
“[n]ot later than 180 days after the date of enactment of this title [i.e.
Title 8 of the National Security Act of 1947, which was enacted on October 14,
1994], the President shall, by Executive order or regulation, establish
procedures to govern access to classified information which shall be binding
upon all departments, agencies, and offices of the executive branch of
Government. Such procedures shall, at a minimum--(1) provide that, except as
may be permitted by the President, no employee in the executive branch of
Government may be given access to classified information by any department,
agency, or office of the executive branch of Government unless, based upon an
appropriate background investigation, such access is determined to be clearly
consistent with the national security interests of the United States; (2)
establish uniform minimum requirements governing the scope and frequency of
background investigations and reinvestigations for all employees in the
executive branch of Government who require access to classified information as
part of their official responsibilities; (3) provide that all employees in the
executive branch of Government who require access to classified information
shall be required as a condition of such access to provide to the employing
department or agency written consent which permits access by an authorized
investigative agency to relevant financial records, other financial
information, consumer reports, travel records, and computers used in the
performance of Government duties, as determined by the President, in accordance
with section 802 of this title, during the period of access to classified
information and for a period of three years thereafter; (4) provide that all
employees in the executive branch of Government who require access to
particularly sensitive classified information, as determined by the President,
shall be required, as a condition of maintaining access to such information, to
submit to the employing department or agency, during the period of such access,
relevant information concerning their financial condition and foreign travel,
as determined by the President, as may be necessary to ensure appropriate
security; and (5) establish uniform minimum standards to ensure that employees
in the executive branch of Government whose access to classified information is
being denied or terminated under this title are appropriately advised of the
reasons for such denial or termination and are provided an adequate opportunity
to respond to all adverse information which forms the basis for such denial or
termination before final action by the department or agency concerned.”).

[10]See Exec. Order
No. 13,526, Classified National Security Information, § 5.5(a)-(c)
(December 29, 2009), available athttps://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html
(“Sec. 5.5. Sanctions (a) If the Director of the Information Security
Oversight Office finds that a violation of this order or its implementing
directives has occurred, the Director shall make a report to the head of the
agency or to the senior agency official so that corrective steps, if
appropriate, may be taken. (b) Officers and employees of the United States
Government, and its contractors, licensees, certificate holders, and grantees
shall be subject to appropriate sanctions if they knowingly, willfully, or
negligently: (1) disclose to unauthorized persons information properly classified
under this order or predecessor orders; (2) classify or continue the
classification of information in violation of this order or any implementing
directive; (3) create or continue a special access program contrary to the
requirements of this order; or (4) contravene any other provision of this
order or its implementing directives. (c) Sanctions may include reprimand,
suspension without pay, removal, termination of classification authority, loss
or denial of access to classified information, or other sanctions in accordance
with applicable law and agency regulation.”).

[11] Every rule that imposes
a penalty is automatically considered to be a legislative rule with full legal
effect. 44 U.S.C. § 1505(a) (2010) ("[...] every document or order which
prescribes a penalty has general applicability and legal effect.").

For the list of administrative sanctions that may be
imposed under Executive order 13526, see Exec. Order No. 13,526, Classified
National Security Information, § 5.5(c) (December 29, 2009), available
athttps://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html
(“Sanctions [for violating the offenses in section 5.5(b)] may include
reprimand, suspension without pay, removal, termination of classification
authority, loss or denial of access to classified information, or other
sanctions in accordance with applicable law and agency regulation.”).

For a list of the offenses for which these sanctions
may be imposed, see Exec. Order No. 13,526, Classified National
Security Information, § 5.5(b) (December 29, 2009), available athttps://intelligencelaw.com/html-only/law_library/admin/current/presidential_rules/eo_13526.html
(“Officers and employees of the United States Government, and its contractors,
licensees, certificate holders, and grantees shall be subject to appropriate
sanctions if they knowingly, willfully, or negligently: (1) disclose to
unauthorized persons information properly classified under this order or
predecessor orders; (2) classify or continue the classification of information
in violation of this order or any implementing directive; (3) create or
continue a special access program contrary to the requirements of this order;
or (4) contravene any other provision of this order or its implementing
directives.”).

[12]See Kurtz v.
Moffitt, 115 U.S. 487, 504 (1885) (“The army regulations derive their force
from the power of the President as commander in chief, and are binding upon all
within the sphere of his legal and constitutional authority.”); see also
United States v Freeman, 44 U.S. (3 How.) 556, 567 (1845)(“The Army
Regulations, when sanctioned by the President, have the force of law”).

[13]Exec. Order No. 9981, 13 Fed. Reg. 4313 (July 28, 1948)(“It is hereby
declared to be the policy of the President that there shall be equality of
treatment and opportunity for all persons in the armed services without regard
to race, color, religion or national origin.”)

[14]See James Carroll, House of War: The Pentagon and
the Disastrous Rise of American Power, pg. 4 (Mariner Books Ed. 2007)
(describing the Pentagon’s original plan for segregated facilities and
President Roosevelt’s order to General Leslie Groves to remove all “Whites
Only” signs from the building after these facilities had already been built).

[15] President Lincoln
clearly recognized the constitutional deficiencies surrounding his authority to
issue a legislative proclamation without a statutory mandate because he
repeatedly justifies the action as a military necessity in the document. He
states his reliance on his constitutional authority as Commander-in-Chief as
the sole basis for his exercise of legislative power right from the start, then
makes redundant references to the issuance of the rule being “a fit and
necessary war measure for suppression said rebellion” and “warranted by the
Constitution upon military necessity” to make his case. This show that
President Lincoln wanted to persuade people it was connected to the military
and therefore rightfully within his authority to promulgate. He was concerned
about the legality of a President exercising legislative power without a statutory
delegation, which shows that, even in that time of crisis, President Lincoln’s
respect for the rule was a forefront concern. See Emancipation
Proclamation (Jan. 1, 1863) (“I, Abraham Lincoln, President of the United
States, by virtue of the power in me vested as commander in chief of the
Army and Navy of the United States, in time of actual armed rebellion
against the authority and government of the United States, and as a fit
and necessary war measure for suppressing said rebellion, do, on this 1st
day of January, in the year of our Lord 1863 […] order and designate as the
states and parts of states wherein the people thereof, respectively, are this
day in rebellion against the United States the following […] by virtue of the
power and for the purpose aforesaid, I do order and declare that all persons
held as slaves within said designated states and parts of states are, and
henceforward shall be, free; and that the executive government of the United
States, including the military and naval authorities thereof, will recognize
and maintain the freedom of said persons. […] And upon this act, sincerely
believed to be an act of justice, warranted by the Constitution upon
military necessity, I invoke the considerate judgment of mankind and the
gracious favor of Almighty God. […]”) (emphasis added).